By: Barry E. Haimo, Esq.
May 24, 2016
The New Health Care Surrogate Statute
A Health Care Surrogate is a critical document in any estate plan. Essentially, it enables the person executing the document — known as the principal — to designate one or more people to make health care related decisions on his or her behalf. The power was previously deferred until the principal was unable to communicate or declared incapacitated. The definition of incapacity by Florida Law is found here. This created frustration for family members who wanted to carry out their loved ones’ wishes but were unable to do so because the patient could still communicate and incapacity is often difficult to declare in some circumstances. To combat these problems and provide greater flexibility, the new Florida Health Care Surrogate statute was revised so as to provide people with more control over their wishes.
Health Care Surrogate Law for Adults
The Health Care Surrogate statute’s much-needed facelift affects adults in a few important ways:
- First, It enables adults to allow their appointed Health Care Surrogate or Surrogates to act on their behalf immediately, rather than deferring that power until after being deemed incapacitated. On its face, the default designation appears to remain consistent with the deferral of the power as embodied in the predecessor statute; however, it just provides an additional option to the principal to make the power vest immediately, which must be expressly stated in the document. It’s important to note that the Surrogate must corroborate and communicate with the principal about actions taken on his or her behalf at least while the principal remains lucid and able to understand.
- Second, it enables the principal to appoint a separate Health Care Surrogate to make decisions relating to mental health treatment. This is important as well, and will be more thoroughly discussed in subsequent posts.
The new law appreciates that some people may want others to assist them in making medical decisions while they still have capacity, and others may want help only when they are unable to make their own decisions.
Click here to view the new statute.
Health Care Surrogate Law for Minor Children
The new Health Care Surrogate statute also made important additions benefiting minor children:
- First, no parent would ever want their child’s well-being and health adversely affected by his or her absence or inability to make such decisions. Many parents have asked me if they can make a Health Care Surrogate for their minor children and the answer has always been “unfortunately no”, until now.
- Like a last will and testament which provides for parents of minor children to appoint a guardian of the person and property over minor children, the new Health Care Surrogate statute enables parents to appoint Health Care Surrogates for their minor children if they are unable to perform, which is a new addition. Now the child’s parent or legal guardian may appoint a Health Care Surrogate who can provide legal consent to the child’s medical care. The appointment can be for a specific time period, or it can last until the child is no longer a minor or the appointment is revoked. Otherwise, this designation is made by the courts by looking at the statutory preferences. Like the new Health Care Surrogate statute for adults, a separate Surrogate can be appointed for mental health treatment.
Click here to view the new statute.
The bottom line:
The law grants you the power to exercise important rights relating to legal, financial, administrative, medical and other areas. You need to make the decisions or the state will make them for you. We always encourage clients to exercise their rights and the new Health Care Surrogate statute gives you even greater control and flexibility in doing so.
Barry E. Haimo, Esq.
Strategic Planning With Purpose
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